To sue or not to sue, that is the question.
This article discusses one of the most pressing questions in Immigration today. Whether to sue USCIS in Federal Court over a delayed or denied case. Although this article is written with H-1Bs in mind, it can equally apply to other cases such as delayed or denied H-4s, H-4 EADs, L-1s, I-140 petitions and even EB-5.
Bringing a federal action against USCIS may seem daunting at first, but while daunting it may become a necessity to ensure that you as an employer can continue to recruit foreign talent and run an effective business. As an individual if you have a delayed or denied case this could be effective tool to force USCIS to make a decision on your case or overturn a wrongly decided case.
Any employer that files H-1Bs on a regular basis will know that RFEs and denials have become far too commonplace over the last few years and it seems that the onslaught will never end. This is particularly true if you are in the IT industry. IT staffing companies have unarguably been the hardest hit. Despite nothing in the Immigration and Nationality Act or implementing regulations, USCIS has placed a much higher evidential burden on IT staffing companies than it does other employers.
As a direct result of policy memoranda USCIS has attempted to create new requirements for H-1B employers. For example, in February 2018, USCIS released a memo (“Contracts and Itineraries Requirements for H-1B petitions involving Third Party Worksites.”) that requires IT staffing companies to demonstrate specific and non- speculative work assignments for the entire requested validity period. In cases where firms are unable to provide contracts, statements of work, purchase orders etc. for a full 3 years, USCIS has either denied the case or approved the case for a shorter duration. 6 to 12 months approvals are becoming the norm and, in some cases USCIS has even issued approvals for just 1 day.
So what has changed over the last few years to result in such a significant increase in the issuance of RFEs and denials?
In terms of actual formal rulemaking nothing has changed at all. By issuing policy memoranda and interpreting the regulations based on their own agenda, USCIS has completely by-passed the formal rulemaking procedure and has effectively created new hoops for employers to jump through. As a result, USCIS has completely changed the way that cases are adjudicated, which has resulted in more RFEs and denials.
In FY 2015 denial rates for initial H-1B petitions was at 6 %. In FY 2019 denial rates rose to 32%. This means over a four year period denial rates are more than 5 times higher. Yet there have been no formal changes in the reules and regulations.
Why should I sue USCIS and why now?
Suing USCIS has always been an option, but one rarely used. In most cases where an H-1B is denied the employer either re-files the petition or files a Motion to re-open/re-consider (“MTR”). While these options may be effective at times, they can also result in further RFEs, further denials and lost time and lost money. Furthermore, delays in processing times and denials can result in the loss of valuable employees. Additionally, where a cap case is denied, re-filing the petition is not even an option.
Filing suit in Federal Court does not require an employer to exhaust administrative remedies such as filing an MTR/appeal. If a case is delayed/denied an employer can go straight to Federal Court and bring an action under the Administrative Procedure Act (“APA”).
What type of cases can be filed in Federal Court?
Cases that are suitable for filing in Federal Court can broadly be put into 3 categories, namely:
1. Unreasonably delayed cases- these are cases that are taking longer than the posted processing times and can include H-1Bs filed in regular processing, H-4s, H-4 EADs, I-140s etc. As soon as the case goes beyond the posted processing time you have a valid case to file a Federal lawsuit to force USCIS to make a decision.
2. Partial approvals/Partial denials- A classic example of this is an H-1B that is requested for 3 years, but that is only approved for 6 months. While this is an approval, it is still only a partial approval and is also a denial of 2 years and 6 months. The APA requires USCIS to provide a written explanation for a denial and this includes partial denials. However, when USCIS approves a case for 6 months they always fail to provide a written explanation for the denial of the remaining requested time. All an employer ever receives is an approval notice, showing the approved validity dates. What USCIS should do to comply with the APA, is issue a written decision explaining why they have denied the remaining time. The reason USCIS don’t do this is simply because there is no valid justification for shortening the validity dates. USCIS should either approve the case for a full 3 years or not approve the case at all. The statute or regulations do not allow them to issue truncated approvals.
3. Wrongly denied cases- This could include a denial where USCIS claims that the position is not a specialty occupation, despite you having provided an expert opinion which expressly states otherwise. Such denials will need to be reviewed on a case by case basis with an experienced Immigration and Litigation Attorney.
What are the benefits of suing USCIS?
First and foremost is to challenge the individual delay or denial with the view to getting the decision overturned. By filing a Federal lawsuit, you are forcing USCIS to justify their decision, which it is highly unlikely they will be able to do. In most cases where a Federal lawsuit has been filed, USCIS has chosen to avoid litigation and has issued an approval. This is particularly true on delayed cases and partial approvals.
Looking at the bigger picture you are demonstrating that you are prepared to fight USCIS, in the event, that they misapply the law. USCIS is known for being afraid of litigation and are likely to avoid challenging employers who are known to sue. By standing up to USCIS now you will likely receive more favorable treatment in the future. Why? Plain and simple, USCIS wants to avoid litigation at all costs. If you have sued them once they take the view that you are more likely to sue them again. As a result, USCIS are less likely to challenge employers who take a stand.
Furthermore, the more employers that show themselves willing to file federal lawsuits, the more likely USCIS is to follow the law and adjudicate cases fairly. If you continue to put up with the onslaught of RFEs and denials, they will surely keep coming. The only way to stop them in their tracks is to take action and hold USCIS accountable.
How we can help
At Patel Law Group, we are committed to helping individuals and employers achieve their Immigration goals and strongly believe that suing USCIS will be effective tool for you obtain the result that you deserve.
As well as having a strong Immigration team we also have experienced Federal Litigators, who are ready to fight on your behalf. If you are interested in learning more about filing a Federal lawsuit please e-mail me at firstname.lastname@example.org.
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August 28, 2019